Ray Patton v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

MARGARET MEADS, JUDGE

DIVISION II

RAY PATTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA00-139

September 20, 2000

APPEAL FROM THE OUACHITA COUNTY CHANCERY COURT

[NO. J98-191]

HON. EDWIN A. KEATON,

CHANCERY JUDGE

AFFIRMED

Appellant, Ray Patton, was adjudicated delinquent by the Ouachita County Chancery Court, Juvenile Division, on a charge of attempted rape and placed on probation for a period of two years. On appeal, appellant argues that the trial court erred in denying his motion for directed verdict because the State failed to offer sufficient evidence of a substantial step toward the act of rape.

The victim, A.S., who is seven years old, testified that in October he was playing in the sandbox on the kindergarten playground after school hours when appellant approached, dragged him into the bushes, and said, "You better give me `heads' or I'll kill you." Appellant said that he was going to kill him with a knife that appellant had in his pocket, and also threatened to blow them both up with the gas meter. A.S. testified that appellant repeated the threat three more times. Appellant held him against a wall and started

unbuttoning his own pants. When appellant had to take his hand off him, A.S. tried to get away, but appellant caught him and pulled him back to the brick wall. A.S. then punched appellant in the stomach and was able to get away. Appellant chased A.S. around the school, but A.S. outran him and ran home.

A.S.'s stepfather testified that when he pulled into the driveway on his way home from work on the day of the incident, A.S. came running from the playground. He ran up to the truck and said that a boy had dragged him from the playground around one of the buildings behind the school. He was very excited, very upset, and crying. They went back to the school but could not find the boy. When the stepfather heard what the boy wanted, he became enraged and took A.S. to report the incident. A.S. was able to describe the bicycle the boy was riding as being a girl's pink and white bicycle. His sister then knew who the boy was. A.S.'s stepfather also testified that A.S.'s feet were scraped.

Steve Word testified that he saw appellant riding a reddish bicycle on the playground that afternoon. Eddie Roland, Bearden City Marshal, testified that on October 10, he received the report from A.S.'s stepfather. He interviewed A.S. and took him to appellant's residence, where A.S. identified the bicycle.

Appellant, who is thirteen years old, testified that nothing happened and that he never had any contact with the victim. His mother testified that he looked all right when he returned home that day and was not upset or excited.

At the close of the State's case and again at the close of the evidence, appellant made a motion for directed verdict on the basis that the State failed to offer sufficient proof thatappellant committed a substantial step toward the act of rape. The trial court denied appellant's motions.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). In reviewing the sufficiency of the evidence in a delinquency case, we apply the same standard of review as in criminal cases. C. H., Jr. v. State, 51 Ark. App. 153, 912 S.W.2d 942 (1995). In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra.

A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion or who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(1), (4) (Repl. 1997). Deviate sexual activity means any act of sexual gratification involving penetration however slight of the mouth of one person by the penis of another person. Ark. Code Ann. § 5-14-101(1)(A) (Repl. 1997). Forcible compulsion means physical force or threat of physical injury to any person. Ark. Code Ann. § 5-14-101(2) (Repl. 1997). A person attempts to commit an offense if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended toculminate in the commission of an offense. Ark. Code Ann. § 5-3-201(a)(2) (Repl. 1997).

Here there was evidence that appellant held the seven-year-old victim against a wall while unbuttoning his own pants and threatening to kill him if he did not perform a sexual act upon him. Appellant's words and actions constituted substantial evidence that he intended to engage in deviate sexual activity with his victim, and his unbuttoning of his own pants constituted a substantial step towards achieving that end. Viewed in the light most favorable to the State, this constitutes substantial evidence to support appellant's adjudication as a delinquent.

Affirmed.

Robbins, C.J., and Crabtree, j., agree.